Motion to Dismiss Intent to Sell or Deliver (Example)

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO. 2012-CF-0000-A-O
STATE OF FLORIDA,
Plaintiff,
vs.
THE ACCUSED,
Defendant.
/MOTION TO DISMISS COUNT ONE

The Accused in the above styled cause hereby moves this court for an order dismissing count 1 of the information, the charge of possession of cannabis with intent to sell or deliver, pursuant to Fla.R.Crim.P. 3.190(b) and as grounds would show;

There are no material disputed facts, and those upon which the State would rely for conviction herein do not constitute a prima facie case of guilt.

The material undisputed facts are as follows;

1. On June 1, 2012, at 17:25 hours, Officer Robert Smith of the Orange County Sheriff’s Office was patrolling in an unmarked vehicle the Villas Apartment complex.
2. While parked, he noticed a black male in a red shirt come walking from the first floor breezeway of Building 21, and said black male was carrying a white plastic bag with something wrapped up inside of it.
3. Officer Smith further reported that the black man in the red shirt approached a white Dodge van. The driver of the white van was the Accused. The driver of the white van then unlocked the door and the black male in the red shirt, allegedly carrying a white plastic bag, entered the passenger door and sat in the front passenger seat. Officer Smith stated that the white Dodge van had very little or no tint on the windows and that he could see the two occupants very clearly as they conversed.
4. Somehow, Officer Smith could see that a clear plastic baggy was handed to the driver from the passenger, and supposedly, he could also see that said baggie was filled with a green and brown leafy substance which he immediately recognized as cannabis.
5. Officer Smith further reports that the driver (Defendant) handed the passenger U.S. currency in an unknown amount. The driver and the passenger both were staring down into their own laps for a few moments and then the passenger exited the van and walked back into the first floor breezeway of Building 21. Then, the white van pulled away from the parking space and headed west through the complex back toward the entrance.
6. Officer Smith further states that he, accompanied by Officer Jones, followed the white van in his patrol vehicle while advising members of their squad of the description of the white van.
7. Officer Smith then watches as additional members of his squad used their marked patrol vehicles to conduct a traffic stop on the same white van at the entrance of the apartment complex, at the intersection of S. Street Ave. and River Circle.
8. After stepping out of the van, the Accused was taken into custody and thereafter identified himself by producing his Florida’s Driver’s License. Subsequently, the defendant was placed in the back of a patrol car and advised of his Miranda Warnings by Officer Smith.
9. Officer Smith then walked over to the white van and observed that D/S Jones had located approximately 60 grams of cannabis, inside of three baggies (two baggies inside of one bag). The van was seized and forfeited as part of a drug transaction. The Accused was unable to secure the return of his forfeited van.
10. The Accused was arrested, and a search revealed $50.00 cash.
11. The Accused was charged by information with Possession of Cannabis with intent to sell or deliver, and Possession of Cannabis over 20 grams.

Wherefore, the material undisputed facts do not constitute a prima facie case of guilt against the Accused.MEMORANDUM OF LAW

As a matter of law, the above facts do not support a charge of possession “with intent to sell or deliver”. The only evidence before the court is that the Defendant purchased approximately 60 grams of cannabis, and had only $50.00 cash on him after said purchase (at the time of arrest). At most, these facts support possession with intent to smoke, and as such, this charge should be dismissed and the Accused should be left to face the felony Possession of Cannabis over 20 grams found in Count Two.

It is important to note early that “possession” is not a material fact of this motion because the Accused is challenging the sufficiency of the evidence pertaining to count one “with intent to sell or deliver”. We are challenging whether law enforcement observations, law enforcement’s prior knowledge of the defendant, the weight, the packaging, the amount of money, the denominations, the sales behavior, and other facts constitute a prima facie case of possession “with intent to sell or deliver”. Any language in this motion hedging on whether the defendant did or did not have possession of the felony amount of cannabis can be disregarded.IF WEIGHT, CASH, AND PACKAGING ARE CONSISTENT WITH PERSONAL USE….CASE DISMISSED

In the case at bar, the Defendant’s behavior indicates a simple purchase of cannabis. As we will see below, Florida courts have held that $400 cash, 5.0 grams of cocaine in six baggies, all within a larger baggie, cannot sustain a conviction of “intent to sell or deliver”. See below Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002). Increase the grams to 26.6 grams of cannabis, in ten baggies, all within a larger baggie, and we still find that these amounts cannot support a prima facie case of possession “with intent to sell or deliver”. See below, Phillips v. State, 91 So.2d 1137 (Fla. 2nd DCA 2007).

In our case, the accusation is that the Defendant’s alleged two bags of cannabis contained within one larger white plastic bag, with an approximate weight of 60 grams, plus $50 cash in various denominations, is enough to prove the intent to sell or deliver. Our case involves suspected cannabis procured for possession at best. As such, the state’s case raises no more than a mere suspicion of intent to sell.

In the case of Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002), Jackson fled from a traffic stop, but once arrested a pat down search discovered $400 in cash and cocaine which “weighed five grams and was packaged in six ring baggies contained within a larger baggie.” Id. [a Google search of cocaine values reveals that 3.5 grams of cocaine is worth approximately $120-$175, thus 5 grams is worth $170-$250]

The Jackson court overturned the conviction for possession with intent to sell or deliver, noting that

“[t]his quantity, even as packaged, was not so large as to imply an intent to sell without other evidence. It was equally plausible that Jackson had purchased the six baggies of cocaine for his personal use.” Id. at 541.

Similar rulings have been made in other possession with intent to sell cases, such as Lesane v. State, 895 So.2d 1231 (Fla. 4th DCA 2005) where the 4th DCA overturned a ‘with intent’ conviction where defendant: 1) fled from police 2) carrying an empty white superglue tube, 3) possessed $114 cash, and 4) threw down 20 rocks of crack cocaine.STATE HAS SUBSTANTIAL BURDEN WHEN POLICE:
(1) DO NOT WITNESS DEFENDANT SELLING DRUGS, AND
(2) HAVE NO PERSONAL KNOWLEDGE OF DEFENDANT SELLING DRUGS

Officer’s Smith and Jones never witnessed the Accused sell or intend to sell 60 grams of marijuana, nor do they have personal knowledge of any sort of prior drug sales by the Accused. The officers merely witnessed the Defendant purchase marijuana, at best. When law enforcement fail to witness a defendant sell drugs, and they have no personal knowledge of a defendant’s drug dealing–a possession with intent to sell can only be proven when the quantity or packaging of the drugs found in a defendant’s possession indicate an intent to sell–whereby such quantity or packaging may be circumstantial evidence of an intent to sell if the amount is inconsistent with personal use. McCullough v. State, 541 So.2d 720, at 721 (Fla. 4th DCA 1989).

The case of Alleyne v. State, 42 So.3d 948 (Fla. 4th DCA 2010), involved an ‘expert officer’ who testified that 18 individual plastic Ziploc bags containing marijuana, a rolled up $20 bill with the marijuana, and another $36 found in Alleyne’s pocket was evidence of intent to sell.

Alleyne was charged with possession of marijuana with intent to sell within 1,000 feet of a school. Alleyne ran when police rolled up to a convenience store which he was standing outside of, and as he ran a brown bag flew out of his hand. Inside the bag police found 18 individual plastic Ziploc bags containing marijuana, a rolled up $20 bill, and another $36 was found in Alleyne’s pocket. The total weight of 18 baggies was less than 20 grams. At trial, an officer testified that the

“amount that Mr. Alleyne had on his person was not for personal use, it was for drug dealing.” Id.

The officer was convinced these 18 baggies of marijuana could not have been for personal use,

“[n]ot the way it was packaged, not the way he was standing, and not the way the incident took place.” Id.at 949.

The appellate court seemed perplexed by this officer’s testimony, as they reasoned that his “expert” opinion came in spite of the fact that the officer

“never saw Alleyne engaged in selling marijuana and had no personal knowledge that he had ever done so.” Id.at 949.

The court further noted that Alleyne’s flight from the police was “as consistent with possession of illegal drugs as it was with the intent to sell them”. Id at 951. As you might expect, the Alleyne court overturned his conviction for possession with intent to sell or deliver.

Even adding a weapon to a mix of drugs, paraphernalia, and cash does not add up to a possession with intent charge. Such was the case in Williams v. State, 569 So.2d 1376, 1377 (Fla. 2nd DCA 1990), holding that evidence of 10 pieces of cocaine, marijuana rolling paper, $72, and a weapon was not sufficient to prove intent to sell.

If more marijuana and more baggies are added to the equation, the evidence is still insufficient to support a possession “with intent to sell or deliver” charge. In Phillips v. State, 91 So.2d 1137 (Fla. 2nd DCA 2007), the defendant was found with one large plastic bag which then contained 10 smaller plastic bags of marijuana, total felony possession weight of 26.6 grams. Even though three police officers testified that the quantity and packaging was consistent with packaging marijuana for sale, the court overturned the conviction.

In the present case, the Accused did not possess numerous smaller baggies of marijuana, nor did he make any attempt to flee the scene and avoid arrest. Officer Porteus assumes “intent to distribute” from the mere fact that there was a felony amount of marijuana in three separate bags which, in his view equals an “intent to distribute.” With nothing more than 60 grams of caanbis, this “intent to deliver” charge cannot stand on the facts.CONCLUSION

We have but one issue, a material issue–the legal sufficiency of the state’s evidence with regard to “intent to sell or deliver”. Sworn statements with regard to the issue of “actual possession” of the three baggies have no bearing on evidence pertaining to an intent to sell or deliver. As such, any state traverse must dispute “material” facts. Our Fifth District Court of Appeals in State v. Hysell held that a traverse mandates the denial of a motion to dismiss only when it “creates a dispute as to material evidentiary facts [emphasis in original]”. The 5th DCA upheld dismissal in Hysell because the state’s traverse merely “disputed the legal effect” of the facts. 569 So. 2d 866, 867 (Fla. 5th DCA 1990).

The 3rd DCA in State v. Nunez held that the state’s traverse was insufficient to survive the defendant’s motion to dismiss, because “a traverse requires more than a did not, did so swearing match.” 881 So. 2d 658 (Fla. 3rd DCA 2004). An admission as to whether or not the Accused in our case possessed three baggies of cannabis with “intent to sell or distribute” is the same sort of “did not, did so” swearing match which the Court has held insufficient.

The state’s position that a Motion to Dismiss which claims that “intent” is not a proper issue to be decided by a motion to dismiss is erroneous. Recently, the First DCA held that “intent” was properly determined in a motion to dismiss. Bonge v. State, 2011 WL 522796 (Fla. 1st DCA 2011). Bonge filed a motion to dismiss his battery on a person 65 years of age or older, where it was alleged that he committed battery on an elder by physically removing his mother/victim from her nursing home, then transporting her to an emergency room of a hospital. The sole issue, the sole “material fact” to be decided, was the “intent” of Bonge. Intent is an element of battery. Id. The state traversed Bonge’s motion to dismiss, adding the fact that the “victim protested being removed from the facility,” and the trial court denied the motion to dismiss. Id.

The First DCA overturned the trial court, noting “The intent to commit a battery is determined by the circumstances surrounding the touching or the striking of the victim [internal citations omitted]”, and given the facts of Bonge’s case, “the State could not establish that Bonge intended to touch his infirm and elderly mother against her will”, even with a traverse. Id. [emphasis added]

For the foregoing reasons, the Accused requests this court to dismiss the Possession with the intent to sell/distribute charge against him.

Respectfully submitted this 19th day of November, 2012.

The Law Firm of John P. Guidry II, P.A.

BY: _____________________________
JOHN P. GUIDRY II, Esquire
Attorney for the Accused
320 N. Magnolia Ave. Suite B-1
Orlando, Florida 32801
Phone (407) 423-1117
Fax (407) 423-1118
Florida Bar Number 0990086CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by hand delivery to Office of the State Attorney, Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida 32801 this 12th day of November, 2012.

___________________________
John P. Guidry II